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Law Digest — Maryland Court of Special Appeals — May 7, 2020

Maryland Court of Special Appeals

Criminal Procedure; Search and seizure: Although holding that the defendant, by failing to timely file his mandatory motion challenging the sufficiency of a warrant for the search of his home, waived his right to a Franks hearing to test the validity of claims made by an investigating officer to a judge in seeking the warrant, the Court of Appeals also considered the merits of the defendant’s claim and determined that the defendant had not met his preliminary burden of showing that the investigating officer misled the issuing judge by using intentional falsehoods or statements that recklessly disregarded the truth and, moreover, that even with the challenged statements removed, the affidavit was still sufficient to establish probable cause to issue the search warrant. Thompson v. State, No. 0198, Sept. Term, 2019.  

Criminal Procedure; Sentencing: Maryland Rule 4-345(e)(1), granting a court the power to revise a sentence, does not apply to a finding of not criminally responsible (“NCR”) because a finding of NCR is not a “sentence” as the term is contemplated by the Rule. Schmidt v. State, No. 2795, Sept. Term, 2018.

Criminal Procedure; Victim impact statement: Where the trial court erred as a matter of law by not affording a crime victim the ability to present victim impact evidence before giving final approval to a binding plea agreement with the defendant in an assault case, the appropriate remedy was for the appellate court to vacate the defendant’s sentence and the trial court’s approval of the plea agreement and remand the case for the circuit court to consider approving the plea agreement after it allowed the victim the opportunity to present victim impact evidence, because this remedy vindicated the victim’s rights and did not implicate the defendant’s Fifth Amendment right to be free from double jeopardy. Antoine v. State, No. 2880, Sept. Term, 2018.

Negligence; Causation: In a negligence lawsuit against a municipality for damages arising from an automobile accident that took place near a leaking fire hydrant, the circuit court did not err in granting summary judgment in favor of the municipality because, although the plaintiff provided evidence that the hydrant was defective, the plaintiff failed to produce sufficient evidence that the leaking hydrant created a dangerous roadway condition that caused her accident. Williams v. Mayor and City Council of Baltimore City, No. 3095, Sept. Term, 2018.

Workers’ Compensation; Compensable injury: The circuit court did not err in affirming the Workers’ Compensation Commission’s award of benefits to a firefighter injured while spending the night at a non-assigned fire station between two days of serving as an instructor at a work recruiting event, based on testimony establishing that it was common practice for firefighters to sleep at stations before and after shifts, because, under the facts presented, the circuit court could reasonably have found that the injury arose both “out of” and “in the course of” the firefighter’s employment. Montgomery County v. Maloney, No. 632, No. 2798, Sept. Term, 2018.

Criminal Procedure

Search and seizure

BOTTOM LINE: Although holding that the defendant, by failing to timely file his mandatory motion challenging the sufficiency of a warrant for the search of his home, waived his right to a Franks hearing to test the validity of claims made by an investigating officer to a judge in seeking the warrant, the Court of Appeals also considered the merits of the defendant’s claim and determined that the defendant had not met his preliminary burden of showing that the investigating officer misled the issuing judge by using intentional falsehoods or statements that recklessly disregarded the truth and, moreover, that even with the challenged statements removed, the affidavit was still sufficient to establish probable cause to issue the search warrant.

CASE: Thompson v. State, No. 0198, Sept. Term, 2019 (filed April 7, 2020) (Judges Leahy, WELLS & Sharer (Senior Judge, Specially Assigned)).

FACTS: On the evening of March 16, 2017, the Special Victims Investigation Division of the Montgomery County Police, Maryland Police Department (“MCPD”) received a case involving the alleged sexual assault of a minor. The FBI emailed Sergeant Monique Tompkins regarding its conversation with a confidential informant (“C.I.”) on March 15, 2017. The details of that conversation alleged, among other things, that several days prior, Kyle Thompson had showed the C.I. videos of him sexually assaulting his four-year-old daughter (“Child 1”).

That evening, MCPD detectives made four phone calls to the C.I. The first and main call was a 32-minute recorded phone call from the desk of Michelle Sears of Montgomery County Child Protection Services (“CPS”), joined by Detective Melvin Avelar, who was supervised by Sgt. Tompkins. This call was followed by three shorter calls. Sgt. Tompkins was not present for the first and main interview but was present for at least one of the shorter, unrecorded phone calls. Between the second and third phone call, Sears printed a 2015 CPS report that appeared to detail sexual assault allegations by Victim A (Child 1’s older half-sister) against Thompson.

Following these phone calls, Det. Avelar drafted an application for a search warrant and e-mailed it to Sgt. Tompkins. The investigation summary stated, in part, that the source had stated that Thompson had previously sexually abused Child 1’s older sister (“Victim A”) several years prior, when Victim A was approximately nine years old. The source stated that Victim A. disclosed that the abuse happened when her and her mother went to “Kyle’s house” located at 14215 Ballinger Terrace, Burtonsville, Maryland. The summary also stated that the writer had conducted a check with Child Protective Services and other police agencies and had corroborated the source’s information regarding Thompson stated to the anonymous

The next day, March 17, 2017, while Det. Avelar went to Baltimore County to review forensic interviews of Victim A’s allegations, Sgt. Tompkins revised the search warrant affidavit. Later that day, Sgt. Tompkins appeared before Judge Ronald Rubin with the revised search warrant application, now containing her signature rather than that of Det. Avelar. The investigative summary, as revised, stated that “the writer” interviewed “the anonymous source,” although, in fact, the C.I. had provided her name and contact information to the police. The final affidavit signed by Sgt. Tompkins read under the “OATH” section, “Detective Melvin Avelar, personally appeared before me…” Judge Rubin signed the search warrant.

With the search warrant in hand, the police searched Thompson’s home. The police recovered videos of sexual assaults as described by the C.I. On April 13, 2017 a grand jury for the circuit court returned an indictment charging Thompson with 78 counts of sexual abuse of a minor and related sex offenses based primarily on the videos obtained in the search of Thompson’s home.

Thompson’s first attorney entered his line of appearance on April 17, 2017. On June 30, 2017, counsel filed a Motion to Suppress Evidence and a Motion to Suppress a Custodial Statement. Thompson withdrew those motions without prejudice on January 11, 2018 and agreed with the State that unless the case was resolved via a plea agreement the State would consent to a hearing on those motions. On May 24, 2018, another attorney entered a line of appearance on Thompson’s behalf, and on June 6, 2018 the court granted Thompson’s motion to strike his first attorney’s appearance. During this time, a parallel federal case commenced in the United States District Court for the District of Maryland. Thompson was represented by the same attorneys.

On July 23, 2018, Thompson filed a request for a Franks hearing, asserting that, based on information he had only recently learned in the federal case, Sgt. Tompkins intentionally misled the issuing judge in her affidavit. Thompson specifically grounded his claim on Sgt. Tompkins’s sworn statement that “the writer interviewed” the C.I. Following a hearing, the circuit court denied the request, holding that Thompson’s request for a Franks hearing was waived under Maryland Rule 4-252, which required filing within 30 days of April 17, 2017, the date Thompson’s first attorney appeared on Thompson’s behalf. The court also ruled on the merits and found that Thompson had not met his burden of showing that Sgt. Tompkins made false or reckless statements such that those statements established probable cause.

On October 2, 2018, the circuit court also denied Thompson’s challenge to the sufficiency of the search warrant. The following day, Thompson entered a conditional guilty plea before Judge McGann to ten counts of the indictment and preserved his right to appeal the orders denying his motions to suppress. He was sentenced to three consecutive life terms plus 145 years, consecutive to his federal sentence of 5,040 months imposed after his conviction on 18 counts of production of child pornography.

Thompson appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Thompson appealed the circuit court’s denial of his motion for a Franks hearing. Thompson argued before the circuit court that there was “good cause” to excuse the late filing of the motion, in that the defense did not become aware until June 29, 2018, through the parallel federal case that Sgt. Tompkins was not present for Det. Avelar’s first interview with the C.I.

The State maintained that Thompson’s motion violated Maryland Rule 4-252, in that it was filed 14 months past the 30-day deadline for filing a mandatory motion. The State also disputed Thompson’s attempt below to show “good cause” for excusing the late filing.

Rule 4-252(a)-(b), provides, in relevant part, that a mandatory motions, including motions raising the matter of an unlawful search or seizure, must be made within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c), except when discovery discloses the basis for a motion, the motion may be filed within five days after the discovery is furnished. Thompson did not dispute that his request for a Franks hearing was a mandatory motion. Thompson filed the Franks request on July 23, 2018, well beyond 30 days of counsel’s entry of appearance or Thompson’s first appearance in court. Thompson’s motion also did not fall within five days of June 29, 2018, the latest date Thompson pointed to as having acquired new information in discovery preceding his filing of the motion. See Rule 4-252(b). As such, his request for a Franks hearing was not timely.

Given the importance of the substantive issues and because the circuit court decided the merits of the motion, a review on the merits was warranted. The concept of Franks hearings originated out of Franks v. Delaware, 438 U.S. 154 (1978), where police sought a search warrant for the home of the defendant, Franks, on suspicion of his involvement in a sexual assault, and Franks challenged the veracity of statements in the search warrant affidavit. Id. at 157. The United States Supreme Court held that to mandate an evidentiary hearing on the veracity of an affiant’s statements, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Id. at 171-72. These requirements were first recognized by the Court of Special Appeals in Yeagy v. State, 63 Md. App. 1, 8 (1985).

Here, the main basis for Thompson’s request for a Franks hearing was Sgt. Tompkins’s statement in the affidavit that “the writer interviewed the anonymous source.” He argued that the difference between this statement and the original narrative written by Det. Avilar showed that Sgt. Tompkins knowingly misled the issuing judge into believing that she personally interviewed the C.I. Thompson asserted this was a materially misleading statement, since a reasonable magistrate might otherwise scrutinize whether second or third-hand information from a source had been reliably passed along.

To support his position, Thompson relied on a case from the Fifth Circuit, Bennett v. City of Grand Prairie, 883 F.2d 400, 407 (5th Cir. 1989), holding that an affiant who merely relates the information of other officers “invites increased judicial scrutiny of the affidavit. However, the Court of Special Appeals rejected a defendant’s nearly identical contention in Hounshell v. State, 61 Md. App. 364 (1985). There, the defendant argued before the trial court that the search warrant affidavit implied the affiant had personally interviewed all witnesses, when some of the witnesses had been interviewed by other officers. Id. at 379–80. The Court of Special Appeals agreed with the trial court that the fact that several witnesses were interviewed by police officers other than affiant “did not constitute a falsehood and did not affect the veracity of the affidavit in any way.” Id. at 180.

The reasoning of Hounshell was more persuasive than that of Bennett. Although information can be certainly misconstrued when passed between persons, that concern was not manifest here. Given  that the C.I.’s interview was recorded, Sgt. Tompkins was not forced to rely exclusively on the relay of information from Detectives Avelar or Sears to summarize and analyze what had been discussed; she could listen to the C.I.’s interview herself. Given the lack of evidence directly refuting the challenged statements in the affidavit or showing Sgt. Tompkins’s intent to mislead, there was no clear error in the circuit court’s conclusion that Thompson failed to meet his burden of proof.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Moreover, even with the challenged statements removed, the affidavit would still have been sufficient to establish probable cause. The affidavit would still imply that someone in the police department had had direct contact with the C.I., and the C.I.’s detailed knowledge of the sexual assault of Victim A, corroborated by a police report and a CPS report, would be sufficient to establish the veracity of the C.I.’s claims. As such, the excised affidavit would still provide a substantial basis upon which probable cause could be found. In addition, the affidavit sufficiently connected Thompson and the alleged sexual assaults to his Ballinger Terrace home. See Braxton v. State, 123 Md. App. 599, 630 (1998).

 

PRACTICE TIPS: While direct evidence that contraband exists in the home is not required for a search warrant, the mere observation, documentation, or suspicion of a defendant’s participation in criminal activity will not necessarily suffice, by itself, to establish probable cause that inculpatory evidence will be found in the home. There must be something more that, directly or by reasonable inference, will allow a neutral magistrate to determine that the contraband may be found in the home.

Criminal Procedure

Sentencing

BOTTOM LINE: Maryland Rule 4-345(e)(1), granting a court the power to revise a sentence, does not apply to a finding of not criminally responsible (“NCR”) because a finding of NCR is not a “sentence” as the term is contemplated by the Rule.

CASE: Schmidt v. State, No. 2795, Sept. Term, 2018 (filed April 7, 2020) (Judges Reed, Beachley & GOULD).

FACTS: In October 2012, Warren Schmidt arrived at Suburban Hospital in Bethesda with an injured wrist. At that time, he was in the midst of a not-yet diagnosed schizophrenic episode. After a nurse completed drawing his blood, Schmidt stood up suddenly and began to strangle her. She was eventually rescued, but not before sustaining significant injuries.

Based on a pretrial psychiatric evaluation finding that Schmidt was no longer a danger to himself or to society, Schmidt and the State agreed that he would plead guilty to first-degree assault and assert (and the State would not contest) a plea of not criminally responsible (“NCR”), and the State would agree to supervised conditional release. Pursuant to that agreement, Schmidt pleaded guilty to first-degree assault. A sentencing hearing was scheduled for a later date.

At the sentencing hearing on November 7, 2013, the court found Schmidt NCR and imposed a five-year conditional release under the supervision of the Department of Mental Health and Hygiene. At the conclusion of the hearing, the court told Schmidt that he had 90 days to file a motion for modification. On February 7, 2014, Schmidt filed a motion for modification under Maryland Rule 4-345, which grants a court the power to revise a sentence. Instead of seeking a prompt hearing, he requested that the motion be held in abeyance pending a request for a hearing, so that in the future he could seek to modify his disposition. The court accepted the motion for filing and agreed to hold the motion in abeyance.

More than four years later, on July 18, 2018, Schmidt requested a hearing on his motion for modification, which the court granted. At the hearing on September 20, 2018, Schmidt sought to convert the NCR finding to a finding of probation before judgment (“PBJ”), under Md. Code Ann., Crim. Proc. (“CP”) §6-220 (2001, 2018 Repl. Vol.), which states that a court may, under certain circumstances, stay the entering of judgment and place a defendant on probation after a guilty verdict. The circuit court questioned whether a PBJ was legally available in Schmidt’s case because of the NCR finding. Ultimately, the court found that Schmidt was not eligible for a PBJ and denied his motion.

Schmidt appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Schmidt argued that the circuit court erred in denying his motion under Md. Rule 4-345(e) to convert the NCR finding to a finding of PBJ. He contended that the circuit court erred in holding that the NCR finding was not a guilty verdict or a “judgment” for purposes of the PBJ statute, CP §6-220. The State countered that the court correctly denied Schmidt’s motion to modify his sentence on the basis that Rule 4-345, the procedural vehicle used by Schmidt to seek a PBJ, did not apply to NCR findings.

To provide the defendant an opportunity to avoid the stigma of a conviction, the PBJ statute allows the court to stay the entering of judgment, defer further proceedings, and place the defendant on probation subject to reasonable conditions. See In re Iris M., 118 Md. App. 636, 645 (1998); CP §6-220. The circuit court correctly found that the word “judgment” as used in CP §6-220 refers to the judgment that occurs upon sentencing. A defendant may seek a PBJ under CP §6-220 to avoid such a final judgment.

Thus, although Schmidt was correct that the NCR finding was a “final judgment,” it was for that same reason that the PBJ statute did not apply to him. When a defendant pleads NCR, he is affirmatively requesting a final judgment, albeit of a different nature than the one that exists upon sentencing. By contrast, when a defendant asks for a PBJ, he is seeking to stop the proceedings and prevent the final judgment of conviction that is entered upon sentencing. See Gleneagles, Inc. v. Hanks, 156 Md. App. 543, 555 n.6 (2004). The entry of judgment on an NCR finding is, therefore, legally and logically incompatible with staying the entry of a judgment as contemplated by CP §6-220.

Schmidt invoked subsection (e)(1) of Maryland Rule 4-345, which states in relevant part that, upon a motion filed within 90 days after imposition of a sentence, the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence. Schmidt urged a broad construction of the term “sentence” to include any and all “judgments of guilt” for purposes of Rule 4-345. Under this interpretation, subsection (e) would give the court revisory power over any disposition following a finding of guilt.

However, such a broad interpretation was unwarranted. Under the express terms of Rule 4-345, the subject of the court’s revisory power is limited to a “sentence.” See State v. Griswold, 374 Md. 184, 194 (2003). A “sentence” is “the sanction that is being imposed” on a defendant. Id. As a matter of law, a finding of NCR does not result in a sentence or criminal sanction. See Peterson v. State, __ Md. __, No. 14, Sept. Term 2019 (filed March 31, 2020). Therefore, under the plain language of Rule 4-345, its reach does not extend to NCR findings. See

This conclusion was reinforced by the opinion of the Court of Special Appeals in Bereska v. State, 194 Md. App. 664 (2010). There, the defendant pleaded guilty to third-degree sexual assault. Id. at 668. He was sentenced to a term of incarceration but moved to modify his sentence to a PBJ. Id. The court agreed to hold the motion sub curia pending the successful completion of his sentence and probation. Id. However, unbeknownst to the court and the parties, after Bereska committed the underlying crime but before he pleaded guilty, the General Assembly changed the law to prohibit a PBJ for third-degree sexual assault. Id. at 671.

After Bereska completed his sentence and probation, he requested a hearing on his previously-filed motion to modify the sentence, again asking for a PBJ. Id. at 671. Conceding that the change in the law precluded a PBJ for the crime to which Bereska had pleaded guilty, Bereska sought another pathway to a PBJ. Bereska and the State agreed that he could withdraw the original guilty plea and enter a new plea to a lesser offense for which a PBJ was available, in exchange for Bereska’s agreement not to seek an expungement of his record. Id. With the agreement in place, the circuit court held a second plea hearing and approved the parties’ plan.

Ultimately, however, the Court of Special Appeals held that the circuit court lacked authority under Rule 4-345 to allow Bereska to withdraw his initial guilty plea and exchange it for a different plea. Id. at 691. As a result, the appellate court held that the agreement endorsed by the circuit court that had resulted in the PBJ and waiver of expungement right was “void for lack of jurisdiction.” Id. On this basis, the Court of Special Appeals vacated the judgment and remanded the case.

The similarities between the facts of the present case and those in Bereska compelled a similar result. Schmidt’s aim, like Bereska’s, was an expungement of the underlying guilty finding from his record. To be eligible for an expungement, both Bereska and Schmidt sought findings of PBJ. To obtain a PBJ, both Bereska and Schmidt first had to find a way to vacate the final judgment initially entered against them, and for that purpose, they both invoked Rule 4-345. Here, just as in Bereska, Rule 4-345 could not be used for that purpose.

In sum, because a finding of NCR is not a sentence, Rule 4-345 did not give the circuit court the authority to vacate the NCR finding and permit the entry of a PBJ. The circuit court, therefore, correctly denied Schmidt’s motion to modify the NCR disposition to a finding of PBJ. The judgment of the circuit court was accordingly affirmed.

COMMENTARY: Schmidt also contended that, because there are no other possible vehicles for a defendant found NCR to seek a PBJ and thus receive an expungement, Rule 4-345 must apply to NCR findings. Otherwise, he argued, a defendant like himself would never be allowed to expunge the guilty plea and NCR finding from his record. Such a result, he asserted, would violate the policy considerations underlying NCR findings – namely, that such defendants should be faced with opportunities for recovery rather than punishment.

To show that an expungement should be available to him, Schmidt pointed to the fact that expungements are available for NCR findings with respect to other underlying crimes. See CP §10-105(a)(9)-(10). However, this argument cut against Schmidt’s position. The General Assembly’s decision to allow expungements in certain contexts, but not others, must be credited as intentional. If the General Assembly had wanted to allow the expungement of records for all NCR defendants, it could have done so. See In re Ryan S., 369 Md. 26, 56 (2002). Therefore, even if Schmidt’s argument had been persuasive, the Court of Special Appeals could not substitute its own policy preferences for those of the General Assembly.

PRACTICE TIPS: Generally, an appellate court is unable to review a decision on a motion to modify a sentence under Rule 4-345(e) that is “addressed to the court’s discretion.” However, such a decision may be reviewed where the circuit court ruled as a matter of law that it did not have the ability to consider the motion on its merits.

Criminal Procedure

Victim impact statement

BOTTOM LINE: Where the trial court erred as a matter of law by not affording a crime victim the ability to present victim impact evidence before giving final approval to a binding plea agreement with the defendant in an assault case, the appropriate remedy was for the appellate court to vacate the defendant’s sentence and the trial court’s approval of the plea agreement and remand the case for the circuit court to consider approving the plea agreement after it allowed the victim the opportunity to present victim impact evidence, because this remedy vindicated the victim’s rights and did not implicate the defendant’s Fifth Amendment right to be free from double jeopardy.

CASE: Antoine v. State, No. 2880, Sept. Term, 2018 (filed April 14, 2020) (Judges FADER, Beachley & Kenney (Senior Judge, Specially Assigned)).

FACTS: Gary Antoine, a teacher at Patterson High School, was leaving the school building when Dorian Bostic sprayed him with pepper spray. Bostic then pulled out an aluminum bat and swung it at Antoine, hitting Antoine’s right forearm and left wrist. Bostic then ran to his car and shouted at Antoine, “I’m going to run you over.” Bostic then sped out of the parking lot.

Antoine was transported to the hospital to be treated for his injuries. His right ulna was found to have been broken during the assault. Antoine received medication for pain management and was referred to an orthopedic surgeon for surgery to correct his injury. Antoine was able to identify Bostic because they had taught together at Patterson High School in 2015. The incident was also captured on school security video. Other witnesses also saw the assault and were able to identify Bostic. Bostic was charged in the circuit court with assault.

Protections for the rights of crime victims in Maryland are contained in both Article 47 of the Declaration of Rights and in Title 11 of the Criminal Procedure Article. Under §11-402, a crime victim has the right to present, and the sentencing court has an obligation to consider, a victim impact statement. Section 11-403 establishes the victim’s right to address the court before the court imposes a sentence or other disposition. As set forth in §11-402(e), a victim impact statement must identify the victim; itemize the victim’s economic loss; identify and describe the seriousness of any physical injuries; describe any change in the victim’s personal welfare or familial relationships; identify any request for psychological services; identify any request to prohibit contact with the victim; and contain any other information related to the impact on the victim or the victim’s family that the court requires.

At the first hearing in Bostic’s case, because the prosecutor assigned to the case was on paternity leave, a stand-in prosecutor represented the State. The assigned prosecutor, anticipating that the trial would be postponed in his absence, advised Antoine not to attend the hearing and to simply remain “on call” because “nothing substantive” was likely to occur at the hearing. For that reason, Antoine was not present at the hearing.

During the hearing, the circuit court became involved in negotiating a plea agreement with Bostic. Without first hearing from Antoine, the circuit court bound itself to a disposition of probation before judgment. Bostic accepted the court’s offer and pleaded guilty to a charge of second-degree assault. Bostic also agreed to pay restitution in an amount to be determined by the court at a later hearing, in exchange for which the court would make the probation unsupervised.

On November 1, 2018, Bostic, his attorney, and the assigned prosecutor appeared before the circuit court for the scheduled restitution hearing. This time, Antoine and his attorney were also present. Immediately before the hearing, Antoine had filed two motions. In the first, he asked that the court set aside the plea and disposition due to violations of victim’s rights. In the second motion, Antoine sought restitution.

The court focused the hearing on the first motion and postponed consideration of restitution. Expressing doubt as to whether it was authorized to withdraw the disposition and impose a more stringent sentence, the court denied the motion. The court offered to allow Antoine to speak before it proceeded to the issue of restitution, but Antoine’s counsel argued that presenting victim impact evidence at that stage would have no meaning. In light of the court’s decision, Antoine agreed that the Court should go forward with restitution.

The court reconvened on November 14, 2018, to consider restitution. A few hours before the hearing, Antoine filed a notice of appeal to the Court of Special Appeals. At the restitution hearing, Antoine testified at length regarding the losses he suffered as a result of Bostic’s conduct. The court found that Bostic had the ability to pay and ordered him to pay restitution during the period of probation.

The Court of Special Appeals vacated the sentence and plea agreement and remanded the case.

LAW: Antoine argued that the trial court violated his rights under Crim. Proc. §11-402(b) by denying him an opportunity to submit a victim impact statement to the court, under §11-402(d) by failing to consider the victim impact statement in determining the appropriate sentence, and under §11-403(b) by declining to allow him to address the court under oath before the imposition of sentence. The State largely agreed. A sentencing judge will err as a matter of law when he or she admits or excludes victim impact evidence in violation of any of the victim impact statutes. See Lopez v. State, 458 Md. 164, 181 (2018). In this case, the circuit court erred as a matter of law and violated §§11-402(b) and (d) and 11-403(b) when it failed to afford Antoine the opportunity to submit – and thus failed to consider – either a victim impact statement or victim impact testimony before it bound itself to give Bostic probation before judgment.

Under the circumstances, the appropriate remedy was to vacate Bostic’s sentence and the circuit court’s approval of the plea agreement, but not its conditional acceptance of the guilty plea, and to remand for further consideration of the plea agreement after affording Antoine his statutory rights. If, after that further consideration, the circuit court determined to approve the plea agreement, then it should proceed accordingly. If, on the other hand, the court determined to reject the plea agreement, then, pursuant to Rule 4-243(c)(4), it would be required to advise Bostic that the court was not bound by the plea agreement, that Bostic could withdraw the plea, and that if Bostic persisted in the plea of guilty, conditional plea of guilty, or a plea of nolo contendere, the sentence or other disposition of the action could be less favorable than the plea agreement. This remedy was appropriate pursuant to §11-103(e)(2) because it vindicated Antoine’s rights and did not implicate Bostic’s constitutional right  to be free from double jeopardy.

Under §11-103(e)(3), a court may not provide a remedy that modifies a sentence of incarceration of a defendant unless the victim requests relief from a violation of the victim’s right within 30 days of the alleged violation. Collectively, those provisions authorize a court, upon finding that a victim’s rights have been violated, to grant relief necessary to rectify the violation, provided that the victim requests relief within 30 days of the violation and that the remedy does not violate the defendant’s double jeopardy rights. Here, the record reflected that Antoine requested relief both from the circuit court and from the Court of Special Appeals within 30 days of the violation, which occurred on October 15, 2018, when the circuit court approved Bostic’s guilty plea and bound itself to give him probation before judgment. Antoine moved for relief from the circuit court on November 1, 2018, and he filed his notice of appeal to the Court of Special Appeals on November 14, 2018. Thus, the requirements of  §11-103(e)(3) were met.

In order to rectify the violations of his rights, it was necessary that Antoine be placed in the position he occupied before the violations occurred. Thus, the remedy had to give Antoine the opportunity to submit a victim impact statement that the court would consider before determining whether to bind itself to give Bostic probation before judgment. See Crim Proc. §11-402(d). Here, the trial court’s preliminary acceptance of Bostic’s guilty plea did not implicate Antoine’s right to submit victim impact evidence because that act did not bind the court to any particular sentence or disposition. Until the court actually approved the agreement, it remained able to take into account any additional information, including any victim impact evidence, as part of its determination whether to give final approval to the agreement.

When a crime has produced an identifiable victim who has made known his or her desire to submit a victim impact statement and provide testimony before disposition, a trial court must defer its decision to approve or reject the plea agreement until the victim has been afforded a reasonable opportunity to exercise those rights. As such, to rectify the violation of Antoine’s rights, it was necessary to return this case to the stage at which the court had preliminarily accepted Bostic’s guilty plea but had not yet finally approved the plea agreement. In summary, to afford a crime victim a meaningful right to submit victim impact evidence, as required by §§11-402(b) and (d) and 11-403(b), a court must allow the victim an opportunity to present such evidence before binding itself to a particular sentence.

Vacating the circuit court’s approval of Bostic’s sentence and plea agreement would not violate his right to be free from double jeopardy. First, historically, the pronouncement of sentence has never carried the finality that attaches to an acquittal. United States v. DiFrancesco, 449 U.S. 117, 133 (1980). Second, the Supreme Court reasoned that the double jeopardy considerations that bar re-prosecution after an acquittal have no significant application to the prosecution’s statutorily granted right to review a sentence. Id. at 136. The Court of Appeals recently adopted the reasoning of DiFrancesco in holding that the double jeopardy prohibition does not preclude either an appeal of a sentence or resentencing. Twigg v. State, 447 Md. 1, 21 (2016). Thus, vacating Bostic’s sentence and plea agreement to remedy the violation of Antoine’s rights did not violate Bostic’s constitutional right to be free from double jeopardy. See Crim. Proc. §11-103(e)(2).

Accordingly, Bostic’s sentence and plea agreement were vacated and the case was remanded for the circuit court to reconsider the plea agreement after giving Antoine the opportunity to present victim impact evidence.

COMMENTARY: As a preliminary matter, Bostic contended that Antoine lacks standing to bring this challenge because he failed to establish that he filed a completed notification request form with the prosecuting attorney under §11-104(e)(1)(i). However, the rights in §11-402(b) and (d) are not conditioned on the victim giving formal notice at all, and §11-402(c)(2) provides that a victim who has not filed a notification request form is not precluded from submitting a victim impact statement to the court. Moreover, §11-403(b) is explicitly triggered by any of: (1) the prosecutor’s request; (2) the victim’s request; or (3) the filing of the victim notification request form. Thus, Antoine’s failure to submit the formal victim notification request form did not preclude him from asserting any of those rights. Moreover, in light of the General Assembly’s public policy mandate of affording victims broad rights, it would not further the legislative purpose to treat the failure to file a notification request form as a forfeiture of a crime victim’s rights. See Lopez, 458 Md. at 179.

The transcript of the hearing on October 15, 2018, showed that the trial court, the stand-in prosecutor, and even defense counsel were all aware that Antoine wanted to be heard, that he had been placed “on call” in case his presence was needed, and that he had not appeared only because the assigned prosecutor had told him that the trial would not go forward that day. Whether Antoine conveyed his interest in the case by filing the official notification request form or through some other method, the court was on notice of his request to submit victim impact evidence. That notice triggered the court’s duty “to ensure that the victim is in fact afforded the rights provided to victims by law.” §11-103(e)(1). As a result, Antoine’s alleged failure to file a notification request form, if true, was no barrier to his claims here.

PRACTICE TIPS: Victims also have a right to appear at hearings on motions to revise, modify, or reduce a sentence or other disposition. If a victim fails to appear at any such hearing, the proceeding may continue only if the prosecuting attorney states on the record that: (i) the victim or victim’s representative was contacted by the prosecuting attorney and waived the right to attend the hearing; (ii) the victim or victim’s representative could not be located despite efforts made to do so, or (iii) the victim or victim’s representative had not filed a notification request form. If the court is not satisfied by the prosecutor’s statement, the court may postpone the hearing.

Negligence

Causation

BOTTOM LINE: In a negligence lawsuit against a municipality for damages arising from an automobile accident that took place near a leaking fire hydrant, the circuit court did not err in granting summary judgment in favor of the municipality because, although the plaintiff provided evidence that the hydrant was defective, the plaintiff failed to produce sufficient evidence that the leaking hydrant created a dangerous roadway condition that caused her accident.

CASE: Williams v. Mayor and City Council of Baltimore City, No. 3095, Sept. Term, 2018 (filed April 7, 2020) (Judges LEAHY, Wells & Sharer (Senior Judge, Specially Assigned)).

FACTS: During the fall of 2015, the City of Baltimore received notice of a leaking fire hydrant on Franklin Square Drive near the intersection with King Avenue. A work order dated October 30, 2015, indicated that a Baltimore City Department of Public Works (“DPW”) employee investigated the location and referred the hydrant to the maintenance department to have the hydrant “overhauled.” The October work order had a priority of “medium.”

On November 2, 2015, the City logged a citizen service request for a “water break” at the intersection of King Avenue and Franklin Square Drive.” The citizen indicated that the water was coming from the “street” and the water flow was “heavy.” A responding DPW employee observed a “leaking hydrant” at the location. On November 17, 2015, the City received another citizen service request, which stated that the hydrant located at Franklin Square Drive and King Avenue was “leaking all over the road.”

Another citizen service request for the leaking hydrant was logged on November 23, 2015. Gary Billups, a utility investigator for DPW, responded the next day, November 24. Billups noted, “There is a leaking valve at this location – making medium water – no damage.”

In the early morning on November 25, 2015, while driving on Franklin Square Drive, Monique Williams applied her brakes as another car pulled in front of hers. Her vehicle began to sway and then slid in a circular motion before landing on its side. Williams remained in the flipped vehicle until paramedics arrived to remove her. Subsequently, the paramedics transported Williams to Franklin Square Hospital, where she was treated for multiple injuries.

In 2017, Williams filed a complaint against the Mayor and City Council of Baltimore in the circuit court, alleging two counts of negligence. She alleged that she lost control of her vehicle and sustained personal injury because a fire hydrant, for which the City was responsible, was leaking water and created a dangerous condition on Franklin Square Drive. On a motion for summary judgment filed by the City, the circuit court ruled that, although the City had notice of the defective condition of the hydrant, the City was entitled to summary judgment because Williams failed to meet her burden to show that “water or ice or some other defect in the roadway was the cause” of her accident.

Williams appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Williams argued that the trial court erred in granting summary judgment in favor of Baltimore City. She asserted that the trial court failed to address whether there existed a dispute as to material facts, and she contended that there did exist such a dispute. She argued that she presented sufficient evidence that a reasonable jury could find that the water running across the roadway might have been a proximate cause of her loss of control of her vehicle.”

The City did not dispute that it had actual notice of an intermittently leaking hydrant prior to the accident. Thus, the circuit court properly determined that no factual dispute existed with regard to notice of the defective hydrant. The City claimed, however, that not until after the accident did it receive notice of the “unreasonably slippery road conditions” that allegedly caused by the leaking hydrant.

While a municipality has a duty to maintain its public works in good condition, that duty is not absolute. Colbert v. Mayor & City Council of Baltimore, 235 Md. App. 581, 588 (2018). The law imputes constructive notice based on the circumstances of a particular case. City of Annapolis v. Stallings, 125 Md. 343, 347 (1915). A municipality will be found to have constructive notice when the evidence shows that, as a result of the “nature” of a defective condition or the “length of time it has existed,” the municipality would have learned of its existence by exercising reasonable care. Colbert, 235 Md. App. at 588.

In Weisner v. Mayor and Council of Rockville, the Court of Appeals considered whether there was “any evidence produced at the trial from which the jury may have drawn a reasonable inference that the appellee had either actual or constructive notice of the alleged icy condition of the sidewalk.” Weisner v. Mayor and Council of Rockville, 245 Md. 225, 228 (1967). The Court held that “the mere fact that the municipality knows of a heavy fall of snow, or a freeze after a thaw, does not ordinarily include notice of particular danger at any point.” Id. at 229. In such case, there must be actual or constructive notice of the particular defect or obstruction. Id. at 229.

Here, William set forth a theory of constructive notice similar to the theory presented by the appellant in Weisner. She argued that, to determine whether Baltimore City had notice, the jury had to look at the dates of the complaints and work orders and listen to the testimony of DPW investigator Gary Billups, who investigated the scene the night before the accident. However, despite the volume of evidence presented to show that the City had notice of the faulty hydrant, Williams failed to present evidence giving rise to an inference that the City had constructive notice of water or ice across the roadway.

Williams pointed to the separate complaints the City received about the hydrant and emphasized that Billups “observed medium water running through the street.” Billups’s testimony, however, clarified that he did not observe water running across the street. Rather, his observation of “medium water” indicated that there was water “just barely coming out of the street or either the valve.” Notice of “medium water” on November 24, 2015, did not alert the City to the existence of a “bad condition that caused the damage” on November 25, 2015.

Moreover, Williams testified that she did not see, or encounter, any water or ice when she drove past the hydrant on November 25, 2015, on her way to Sam’s Club. She further testified that she did not see anything on the roadway when she passed the hydrant on the opposite side of Franklin Square Drive on her way home. Thus, regardless of Billups’s observation of “medium water” the day before, there was nothing in the record to show that, at the time Williams alleged to have encountered water or ice, the “particular situation had prevailed for such a period of time that the city should have known about it and failed to take steps to remedy it.” Weisner, 245 Md. at 229-30. In the absence of other admissible evidence, Williams did not create a genuine factual dispute as to whether the City had constructive notice of any hazardous roadway condition, or “bad condition that caused the damage.” See Colbert, 235 Md. App. at 588.

Thus, contrary to Williams’s argument, the circuit court did analyze whether a genuine factual dispute existed with regard to constructive notice. The court determined that the City had “actual notice of the defective condition of the fire hydrant,” but noted that the inquiry was not over. The court proceeded to look at the testimony of Williams and Billups, before concluding that Williams had failed to produce any evidence to show that there was water or ice in the street where the accident occurred on the morning of November 25, 2015, as would be required to impute constructive notice to the City.

There was no error in the circuit court’s determination that Williams failed to produce any evidence that water from the hydrant created an icy or hazardous condition that caused her accident. Therefore, the circuit court correctly granted summary judgment in favor of the City. Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Williams argued that she did provide sufficient evidence at the summary judgment stage to allow the case to go to the jury. She relied on the “constant medium flow of water” across the street the day before she lost control of her vehicle, a “reasonable inference” that the water remained at the time she lost control; her own testimony that it “must be something like ice or something on the road” that caused her vehicle to begin sliding after she applied her brakes; and testimony from Jamir Foster and Jael Samuel, whom she identified in her interrogatory answers as witnesses to the slippery conditions of the roadway. As noted, however, Billups’s testimony did not establish that there was a flow of water across Franklin Square Drive on November 24, 2015, that created a hazardous condition. Moreover, Billups testified that, had he noticed an icy condition on the roadway, he would have let “dispatch” know that there was “icy condition that needed immediate response.”

Given that Williams’s testimony that it “must be something like ice or something on the road” was a theory rather than a factual assertion, it could not support an inference of any dangerous condition. See O’Connor v. Baltimore City, 382 Md. 102, 111 (2004). Similarly, the witnesses identified in Williams’s interrogatories as individuals who saw the slippery conditions could not form the basis of an inference in her favor, as the witnesses did not put forth any assertions based on their own personal knowledge. See Zilichikhis v. Montgomery Cty., 223 Md. App. 158, 180 (2015). The evidence before the circuit court was that no other cars encountered any dangerous roadway conditions, Williams did not see any water or ice, and she drove down Franklin Square Drive on the side closest to the hydrant earlier on the same day without issue. In the absence of admissible evidence to the contrary, there was nothing to support Williams’s contention that approximately 30 minutes later there was a hazardous condition on the side of the road furthest from the hydrant.

PRACTICE TIPS: A party opposing a motion for summary judgment has a burden to show disputed material facts “with precision” in order to prevent the entry of summary judgment. Mere general allegations which do not show facts in detail and with precision are insufficient to prevent summary judgment. And, although all inferences are to be resolved in favor of the party opposing summary judgment, those inferences must be reasonable ones.

Workers’ Compensation

Compensable injury

BOTTOM LINE: The circuit court did not err in affirming the Workers’ Compensation Commission’s award of benefits to a firefighter injured while spending the night at a non-assigned fire station between two days of serving as an instructor at a work recruiting event, based on testimony establishing that it was common practice for firefighters to sleep at stations before and after shifts, because, under the facts presented, the circuit court could reasonably have found that the injury arose both “out of” and “in the course of” the firefighter’s employment.

CASE: Montgomery County v. Maloney, No. 632, No. 2798, Sept. Term, 2018 (filed April 7, 2020) (Judges KEHOE, Leahy & Adkins (Senior Judge, Specially Assigned)).

FACTS: John Maloney was a career firefighter for Montgomery County, Maryland. A resident of Sterling, Virginia, Maloney was assigned to work at Fire Station 23 in Rockville. Maloney’s typical work schedule required him to work 24-hour shifts, starting and ending at 7:00 a.m. After each 24-hour shift, he would have 48 hours off.

At the end of April 2016, the County hosted a two-day recruiting event at the Montgomery County Public Safety Training Academy, near Gaithersburg, Maryland. The event was scheduled for Friday, April 29, and Saturday, April 30. Maloney was an instructor in the County’s Candidate Physical Ability Test (“CPAT”) program for the recruitment of new firefighters, and Battalion Chief Anthony Coleman was Maloney’s supervisor in that regard. Coleman asked Maloney to volunteer to explain the CPAT to potential recruits at the event. Maloney agreed. Maloney would be paid overtime to work the event, which ran from 8:00 a.m. to 8:30 p.m. on Friday and from 6:00 a.m. to around 4:00 p.m. on Saturday.

That Friday, at the end of the first day of the recruitment event, Maloney left the academy at around 8:30 p.m. He went to a grocery store to pick up some food. Then, instead of driving home to Sterling, Virginia, he went to nearby Fire Station 33, in Potomac, Maryland, to sleep for the night. Station 33 was not Maloney’s regularly assigned station, and it was not the closest station to the academy. According to Maloney, however, it was “a slower station” where he could get some rest, and staying over at fire stations before or between shifts was “a normal customary practice” for County firefighters.

When he arrived at Station 33 at around 9 p.m., Maloney spoke with Captain Daniel Hudson, the station’s commander. Hudson knew Maloney was staying overnight at the firehouse because he was supposed to work the recruitment event the following morning at the nearby academy. Maloney did not recall expressly asking the commander about staying at Station 33 that night, but no one told Maloney that he should not or could not do it.

Later that same night, Maloney cleaned up, took a shower, and did some reading. At around 10:30 p.m., he walked into the engine bay. The lights were out, and when he stepped down into the bay, he rolled his ankle. In accordance with procedure, Maloney later woke up Hudson to report his injury. Hudson filled out and filed a First Report of Injury, as required when an employee injures himself at work.

On September 30, 2016, the Workers’ Compensation Commission held a hearing to determine whether Maloney’s accidental injury of April 29, 2016, was compensable under the Workers’ Compensation Act. By order dated October 4, 2016, the Commission found that Maloney’s accidental injury arose out of and in the course of his employment with the County. The Commission ordered the County to pay all causally related medical expenses in accordance with the Commission’s Medical Fee Guide.

On November 2, 2016, the County petitioned the circuit court for on-the-record judicial review of the Commission’s award. In his response, Maloney requested a “de novo judicial review by jury trial,” pursuant to Md. Code, §9-745(d) of the Labor and Employment Article (“Lab. & Empl.”). The County moved to strike Maloney’s request. The circuit court denied this motion, as well as the County’s subsequent motion to reconsider. Both parties filed motions for summary judgment. The circuit court denied the motions, and the trial proceeded. The circuit court subsequently affirmed the Commission’s decision to award Maloney workers’ compensation benefits.

The County appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: In Maryland, employers must compensate “covered employees” for certain accidental personal injuries. Lab. & Empl. §9-501. A compensable “accidental personal injury” is one that “arises out of and in the course of employment.” Lab. & Empl. §9-101(b). The County argued that the trial court erred in finding that Maloney’s injury arose “out of” and “in the course of” his employment. In support of this contention, the County focused mainly on that facts that that Maloney was not on duty when he was injured, that he was not required to stay at Station 33 that night, and that he chose to stay there for his own convenience.

The workers’ compensation scheme is designed to compensate only those injuries that are occupationally-related, and not those perils common to all mankind or to which the public is generally exposed. Montgomery County v. Wade, 345 Md. 1, 9 (1997). For that reason, to fall within the scope of the Workers’ Compensation Act, the accidental injury complained of must have arisen both “out of” and “in the course of” employment. Calvo v. Montgomery County, 459 Md. 315, 327 (2018). These two conditions precedent are not synonymous; both must be established by the facts and circumstances of each individual case. Schwan Food Co. v. Frederick, 241 Md. App. 628, 649 (2019). However, it is not required that the conditions be satisfied with equal force. The stronger the facts are to show that an injury arose “out of” employment, the more relaxed the requirement that the injury be shown to be “in the course of” employment, and vice versa.” Montgomery County v. Smith, 144 Md. App. 548, 579 (2002).

Determining whether an injury arises out of employment is a question of causation. See Roberts v. Montgomery County, 436 Md. 591, 604 (2014). If the injury does not have an “inherent connection” to the employment, courts apply the positional-risk test, asking whether the employee would not have been injured “but for the fact that the conditions and obligations of employment placed the employee where the injury occurred.” Id. In the present case, Maloney’s use of the bunk facilities at Station 33, where he was injured, was clearly incidental to his role as a firefighter. See Montgomery County v. Wade, 345 Md. 1, 10-11 (1997). As such, the trial court did not clearly err in finding that his injury arose out of his employment.

Whether an injury arises “in the course of” that employment depends on the time, place, and circumstances of the injury relative to the employment. Calvo v. Montgomery County, 459 Md. 315, 329 (2018). To meet this second requirement for compensability, injuries must occur: (1) during the period of employment; (2) at a place where the employee reasonably may be in performance of his or her duties; and (3) while fulfilling those duties or engaged in something incident thereto. Schwan Food Co. v. Frederick, 241 Md. App. 628, 653 (2019). However, these are factors to be considered, not essential elements, and the absence of one of these factors will not necessarily be dispositive; rather, deciding whether an injury arose in the course of employment is “a fact-specific inquiry.” State v. Okafor, 225 Md. App. 279, 286 (2015).

It could not be said that the circuit court clearly erred in deciding that Maloney’s between-shifts stay at Station 33 was sufficiently work-related to give rise to an injury in the course of his employment. It was true that Maloney was not on the clock when he was hurt, meaning that his injury did not occur during the “period of employment.” See Smith, 144 Md. App. at 577. As in Smith, a case involving an off-duty correctional officer injured while playing basketball at in the gymnasium of the detention center where he worked, Maloney was not “at a place where he would reasonably be expected to be in the performance of his duties,” since he was not assigned to work at Station 33. However, the circuit court still could have reasonably concluded that the other circumstances surrounding Maloney’s injury evinced an “independently convincing association” between his presence at Station 33 at the time of his injury and his employment. Smith, 144 Md. App. at 566.

For one, the record showed that Maloney’s off-duty use of the bunk facilities was an activity “customarily permitted” by the County. Austin v. Thrifty Diversified, Inc., 76 Md. App. 150, 163 (1988). Unlike the claimant’s behavior in Smith, use of stationhouse beds was an “accepted and normal” activity for firefighters. Smith, 144 Md. App. at 570. Thus, the circuit court could have reasonably concluded that sleeping at the station bore more of a “direct relationship to the work” Maloney did during the day. Id. at 569.

In addition, the court reasonably could have determined that, when he was injured, Maloney was engaged in an activity whose purpose was related to the employment. Wade, 345 Md. at 11. Maloney did not stay at Station 33 because it made it easier for him to visit relatives or to go to a baseball game, but because it made it easier to get to work. Indeed, the County did not argue that Maloney chose to sleep at Station 33 for any purpose other than to be able to be at the academy for the recruiting event by 6:00 a.m. the following morning. Finally, under the facts presented, the circuit court could reasonably have concluded that the activity in which Maloney was engaged – sleeping at the station between shifts – did not place him as far outside his employment as Smith’s after-work recreation placed him. Cf. Prince George’s County v. Proctor, 228 Md. App. 579, 588 (2016).

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: As a primary matter, the County contended that the circuit court erred in granting Maloney’s request for a trial under Lab. & Empl. §9-745(d), converting the County’s on-the-record administrative appeal into a de novo appraisal of the facts. However, when a party seeks judicial review of an unfavorable decision by the Workers’ Compensation Commission, his opponent is not inescapably bound by the appealing party’s procedural preference. The language of Lab. & Empl. §9-745(d) makes plain that “any party” can request, “in accordance with the practice in civil cases,” a de novo review of “any question of fact involved in the case.” Maryland case law has confirmed that the statute means what it says. See Baltimore County v. Kelly, 391 Md. 64, 74 (2006). As such, the circuit court did not err in granting the request for a de novo review of the facts under Lab. & Empl. §9-745(d) simply because it was Maloney, not the County, who made the request.

PRACTICE TIPS: When a case involves conflicting facts, witnesses or inferences, a jury should decide whether an injury arose out of and in the course of employment.

 

 

 

 

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